Rone v. Marti

• Decision Date: 21 October 1922
• Docket Number: (No. 10033.)
• Citation: 244 S.W. 639
• Parties: RONE et al. v. MARTI.
• Court: Texas Court of Appeals

244 S.W. 639

RONE et al. v. MARTI.

(No. 10033.)

Court of Civil Appeals of Texas. Fort Worth.

October 21, 1922.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by K. V. Rone and others against Jost Marti. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

R. C. Fuller and Wm. R. Booth, both of Fort Worth, for appellants.

John L. Poulter, of Fort Worth, for appellee.

CONNER, C. J.

During the October, 1919, term of the Seventeenth district court of Tarrant county, the appellee, Jost Marti, recovered a judgment against K. V. Rone, A. W. Rone, and J. G. Willhoite for $667.50. The record discloses that the defendants were present contesting in the cause. The plaintiff, Marti, among other things, prayed for the issuance of such writs of sequestration, attachment, etc., as was appropriate to the relief sought, and it appears that, during the pendency of the cause, a writ, or writs, of attachment were applied for and caused to be issued to the sheriff of Nacogdoches county, commanding the levy upon any property of the defendant K. V. Rone that might be found in that county. As appears from the record, an attachment was levied, and the judgment in favor of Marti also foreclosed an attachment lien, and it was agreed that—

"an order of sale was issued on said judgment, directed to the sheriff of Nacagdoches county, Tex., and the land was levied upon, advertised and sold, and bought in by Jost Marti for the sum of $600, which is a credit on the judgment, and he paid the cost."

The proceeding now before us was instituted in the early part of 1921 by K. V. Rone, joined by L. B. Mast, R. M. Blackburn and N. W. Palmer, to set aside and annul that part of the judgment in favor of Marti which decreed the foreclosure of an attachment lien, in the same connection praying that the order of sale and the sheriff's deed made thereunder should be set aside and canceled, it being alleged that at a date named subsequent to the sheriff's sale referred to K. V. Rone had conveyed the land in question to L. B. Mast and R. M. Blackburn, who in turn conveyed it to Palmer, the present holder of that title.

The ground upon which the plaintiffs in the present proceedings sought, in part, to cancel the original judgment in Marti's favor and the sheriff's proceedings in the sale of the land is based upon allegations to the effect that the attachment writ, by virtue of which the land was sold, was issued on the 29th day of March, 1919, and by its terms made returnable to the district court of Tarrant county, issuing the writ, on the 7th day of April, 1919, which was the first day of the term of the court following the issuance of the writ; that said writ came into the hands of the sheriff of Nacogdoches on the first day of April, 1919, and was not executed until on the 9th day of April, 1919, upon which day, and not before, the levy upon the land in question was made.

It was further alleged that the sheriff did not make his return upon the writ of attachment until the 10th day of April, 1919.

Marti appeared and pleaded, first, a general demurrer; second, special exceptions to the effect that A. W. Rone and J. G. Willhoite, parties to the judgment sought to be corrected, had not been made parties in this proceeding; third, a general denial; and, fourth, specially pleaded the regularity of the proceedings and the finality of the judgment in favor of Marti.

The record discloses that the trial court heard the evidence and all of the evidence offered by the parties, after which he sustained the defendant's demurrer and special exceptions above mentioned, and further entered a judgment in favor of Marti upon the merits of the case. The opposing parties have appealed.

Appellants complain of the court's ruling upon the demurrer and of the judgment as being contrary to the law and the evidence. Appellee objects to our consideration of appellants' assignments of error. The two that will be first noticed are to the effect that the court erred in sustaining the defendant's general demurrer, and also in sustaining the special exception setting up a want of proper parties. We think those assignments are sufficient to require of us consideration, under authorities to be more particularly noticed when we come to notice the assignment complaining of the judgment as unsupported by the evidence.

So proceeding, we will first dispose of the court's ruling upon the special exception. We are of the opinion that the ruling was correct. It is true, as appellants insist, that A. W. Rone and J. G. Willhoite do not appear from the record to have any interest whatever in the land levied upon and sold to Marti, but they were parties to the judgment in Marti's favor, and, by the proceedings referred to, a credit was entered upon the judgment against them, and nothing on the face of the record indicates that their right would be unaffected by a setting aside of the foreclosure of the attachment lien. For aught that appears, they were but sureties for the debt upon which Marti originally declared, and it would seem that they are certainly interested in maintaining the credit entered upon that judgment. Thereby, whatever their relationship to K. V. Rone and to the cause of action upon which Marti declared, their judgment debt is reduced or discharged to the extent of the credit entered by virtue of the sale of the Nacogdoches county land.

We think nothing can be better settled by the law of this state than that before the judgment can be set aside all parties thereto whose interest may be prejudicially affected must be made parties to the proceeding to set the judgment aside. See Owens v. N. Y. & T. Land Co. (Tex. Civ. App.) 45 S. W. 601; Railway v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Rep. 743; Schintz v. Morris, 13 Tex. Civ. 580, 35 S. W. 516, 825, 36 S. W. 292; Hume v. Schintz, 16 Tex. Civ. App. 512, 40 S. W. 1067; Levy v. Gill (Tex. Civ. App.) 46 S. W. 84; Railway Co. v. Smith (Tex. Civ. App.) 99 S. W. 172; Danner v. Walker-Smith Co. (Tex. Civ. App.) 154 S. W. 295; Parker v. Stephens (Tex. Civ. App.) 48 S. W. 879; Hall v. Reese's Heirs, 24 Tex. Civ. App. 221, 58 S. W. 976.

The court's ruling upon appellee's general demurrer will be disposed of when we come to dispose of appellants' assignments of error attacking the judgment for want of support in the evidence. However, what we have said above relating to the special exception is intended for consideration upon another trial, for, if it be admitted that both rulings of the court were erroneous, the errors would be harmless in event the final judgment was sustained. As already stated, the court's ruling upon the demurrer was not announced. In the beginning, the evidence and all of the evidence offered by the parties plaintiff and defendant herein was heard by the court; the judgment so specifically recites; and judgment thereon upon the merits was rendered in appellee's favor. No possible injury, therefore, resulted to A. W. Rone and J. G. Willhoite, not made parties. Nor were plaintiffs impeded by the action of the court from a hearing and a disposition of all of the evidence offered by them in support of their action....